State v. Dixon ( 2013 )

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334 286 NEBRASKA REPORTS
is greater by fifteen percent than the amount of the
award, . . . the court may in its discretion award to the
condemnee a reasonable sum for the fees of his or her
attorney and for fees necessarily incurred for not more
than two expert witnesses.
The court awarded such fees, and we find no abuse of
discretion.
The district court also awarded “costs” to Pinnacle. From
the court’s order, we read “costs” to include the deposition
expenses for $1,419.50. We have treated such expenses as costs
in the past.35 Unlike interest and fees, however, the eminent
domain statutes do not expressly allow the court to award costs
when the condemnee appeals the appraisers’ award and obtains
a greater amount from the jury. Nevertheless, the court’s award
of costs was proper under our case law.36
CONCLUSION
We conclude that the court’s January 2012 order was a final
order from which Pinnacle failed to timely appeal. We also
conclude that the City’s offer to confess judgment was invalid
and that the court’s award of interest, fees, expenses, and costs
was proper.
Affirmed.
35
See, e.g., Bunnell v. Burlington Northern RR. Co., 247 Neb. 743, 530
N.W.2d 230 (1995).
36
Keller v. State, 184 Neb. 853, 172 N.W.2d 782 (1969).
State of Nebraska, appellee, v.
Armon M. Dixon, appellant.
___ N.W.2d ___
Filed July 26, 2013. No. S-12-525.
1. Motions for Mistrial: Appeal and Error. Whether to grant a motion for mistrial
is within the trial court’s discretion, and an appellate court will not disturb its
ruling unless the court abused its discretion.
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STATE v. DIXON 335
Cite as 286 Neb. 3342. Identification Procedures: Due Process: Appeal and Error. A trial court’s
conclusion whether an identification is consistent with due process is reviewed
de novo, but the court’s findings of historical fact are reviewed for clear error.
3. Sentences: Appeal and Error. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
4. ____: ____. An appellate court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial court.
5. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly
granted in a criminal case where an event occurs during the course of a trial
which is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
6. Criminal Law: Trial. The general rule is that a defendant who is on trial should
be free from shackles unless they are necessary to prevent violence or escape.
7. Motions for Mistrial: Proof. A defendant faces a higher threshold than merely
showing a possibility of prejudice when attempting to prove error predicated
on the failure to grant a mistrial. Instead, the defendant must prove the alleged
error actually prejudiced him or her, rather than creating only the possibility
of prejudice.
8. Evidence: Appeal and Error. An appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the evidence presented;
such matters are for the finder of fact.
9. Prior Convictions: Proof. In a proceeding to enhance punishment because of
prior convictions, the State has the burden of proving such prior convictions by a
preponderance of the evidence.
10. Sentences: Prior Convictions: Habitual Criminals: Proof. In a habitual crimi-
nal proceeding, the State’s evidence must establish with requisite trustworthiness,
based upon a preponderance of the evidence, that (1) the defendant has been
twice convicted of a crime, for which he or she was sentenced and committed to
prison for not less than 1 year; (2) the trial court rendered a judgment of convic-
tion for each crime; and (3) at the time of the prior conviction and sentencing, the
defendant was represented by counsel or had knowingly and voluntarily waived
representation for those proceedings.
11. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of the crime.
12. Sentences: Appeal and Error. Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court must determine
whether the sentencing court abused its discretion in considering and applying
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
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336 286 NEBRASKA REPORTS
13. Sentences. It is within the discretion of the trial court to impose consecutive
rather than concurrent sentences for separate crimes.
Appeal from the District Court for Lancaster County: Jodi
Nelson, Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, and
Shawn Elliott for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
Stephan, J.
In April 2009, an armed man forced his way into the
apartment of J.K. and sexually assaulted her over a 10-hour
period. He then took her cell phone and left the apartment.
Armon Dixon was eventually arrested and charged in the
district court for Lancaster County with first degree sexual
assault, use of a weapon to commit a felony, and robbery. He
was convicted on all charges by a jury and subsequently was
determined to be a habitual criminal. Dixon was sentenced to
a total of 80 to 140 years in prison. He appeals.
I. FACTS
J.K., a full-time student, lived in an apartment in Lincoln,
Nebraska, with her 3-year-old son. Around 8 p.m. on April
23, 2009, she went to a gas station for cigarettes. She
returned about 8:45 p.m. and went on the balcony of her
apartment to smoke. About 9 p.m., J.K. answered a knock
on the apartment door and a man forced his way into the
apartment. After they struggled for 2 to 3 minutes, the man
displayed a handgun. He threatened to kill her and her son if
they were not quiet. She took her son to his bedroom, and the
man followed her there.
The man then followed J.K. to her bedroom. By that time,
he was wearing a light brown homemade mask with holes cut
out for the eyes and the mouth. He forced her to remove her
clothes and then blindfolded her, using the tank top she had
Nebraska Advance Sheets
STATE v. DIXON 337
Cite as 286 Neb. 334been wearing. During the next 10 hours, the man sexually
assaulted J.K. at least six times. Prior to the first assault, J.K.
heard the sounds of a paper sack, a wrapper being opened, and
a zipper being unzipped.
The man forced J.K. to clean herself after each assault.
He also removed the bedding after each assault. J.K. was not
blindfolded the entire time and at one point noticed that the
man had a large black garbage bag. The man told her he had
been watching her earlier that evening, and he again threatened
to kill J.K. and her son if she reported his actions.
At one point, the man used a gray T-shirt to blindfold J.K.
and threatened both her and her son with a kitchen knife.
J.K. believed the man was wearing a condom each time there
was sexual penetration. She testified she had no condoms in
her apartment.
After one assault, the man lay next to J.K. on the bed and
asked her personal questions about her family and whether she
had a boyfriend, as he ran the knife up and down the side of
her body. During this time, J.K. saw that the mask was pulled
up over the man’s head and she could see his face.
J.K. eventually could hear birds chirping outside, and she
told the man her neighbors got up at 6 or 7 a.m. After assault-
ing her one final time, he made her use toilet bowl cleaner
in the sink, bathtub, and toilet. He then blindfolded her and
led her into her son’s room. He then directed her to lie on the
floor face down and count to 200 or 300 before getting up.
Eventually, J.K. heard the front door open and close, the rus-
tling of plastic sacks, and then another door close.
J.K. got up and locked the front door and then checked all
the rooms and closets to make sure the man was gone. The man
took her cell phone. After changing clothes and dressing her
son, J.K. drove to her parents’ home in a nearby town.
J.K.’s father called police, who directed her to go to a
hospital for an examination. J.K. gave a telephonic statement
to police the following day. She described her assailant as a
black male with “kind of bushy” hair. She said he was “scruffy
looking” and about 5 feet 11 inches or 6 feet tall. He was
wearing jeans, a black hooded sweatshirt, and latex gloves.
J.K. said she saw the man while they were face to face as they
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338 286 NEBRASKA REPORTS
struggled at the door. During that time, the kitchen light was
on and there was light coming from the television. J.K. later
identified Dixon as the assailant after viewing a photographic
array compiled by the Lincoln Police Department.
The police investigation into the assault showed that
Dixon’s sister lived in the same apartment building as J.K.
A red Oldsmobile, which was registered to Dixon’s mother
and sometimes driven by Dixon, was towed from the apart-
ment complex parking lot the week of April 24, 2009. A white
2000 Cadillac which was registered to Dixon was found in the
apartment complex parking lot on May 3. On May 12, police
searched the sister’s apartment. They found unused condoms
in a black trash bag in a bedroom closet and in a plastic stor-
age tub in the living room. Officers also found a bill addressed
to Dixon at that address. Dixon’s sister testified that he lived
with her 4 or 5 days each week. She testified that she was ill
and did not work on April 23 and 24. She saw Dixon around
11:30 p.m. on April 23, but did not see him on the morning of
April 24.
In April 2009, Dixon had two jobs. He worked during the
day at Concrete Industries and part time in the evenings at
Snyder Industries. He had access to latex gloves at both jobs.
Snyder Industries had a plant in Lincoln on North 63d Street
and another on Fremont Street. Time records indicated that
Dixon clocked in to work at the North 63d Street plant at 5:58
p.m. on April 23. He clocked out at 6:16 p.m. and clocked in
at the plant on Fremont Street at 6:24 p.m. He was clocked
out at 11 p.m. That punch at 11 p.m. was added by a supervi-
sor at 8:32 a.m. the next day. Dixon’s supervisor testified that
if an employee had problems with the timeclock or forgot to
clock out, the supervisor could manually override the system
the next day. The supervisor testified that he authorized vaca-
tion for Dixon from April 27 to May 1 after Dixon called on
April 23 and left a message that he had to be with his sister in
Chicago, Illinois.
Records for a cell phone that belonged to Dixon showed
that the phone was used to check voice mail at 8:16 p.m. on
April 23, 2009. The cell tower the call went through indicates
it was placed in the area of the Fremont Street plant. Another
Nebraska Advance Sheets
STATE v. DIXON 339
Cite as 286 Neb. 334call to voice mail was made from that phone number at 11:32
p.m. It went through a cell tower that had a coverage area
encompassing the location of J.K.’s apartment. The next call
made from the same phone was to check voice mail at 8:15
a.m. on April 24. A number of calls made between 10 and
11:15 a.m. on April 24 all went through the same cell tower
near J.K.’s apartment. A record of text messages on the phone
showed one at 9:13 p.m. on April 23 and one at 12:03 a.m. on
April 24.
A gray T-shirt was collected by a nurse when J.K. went to
the hospital on April 24, 2009. DNA from the T-shirt was deter-
mined to be from a “single-source male.” Dixon was excluded
as a possible contributor of the DNA on the T-shirt. DNA tests
were also completed on fingernail scrapings obtained from
J.K. Dixon was not excluded as a possible contributor of DNA
found in those scrapings.
Dixon testified that in April 2009, he stayed at the apart-
ment of either his girlfriend, his mother, or his sister. He
stated that he did not work at Concrete Industries on April
23, but he did work at Snyder Industries, checking in at 5:58
p.m. and out at 11 p.m. He said he went to his sister’s apart-
ment after work. On Friday, April 24, he went to Snyder
Industries to ask for vacation time, and his supervisor told
Dixon he had failed to punch out the night before. Dixon
denied going to J.K.’s apartment, assaulting her, or holding
her captive.
The jury found Dixon guilty of first degree sexual assault,
use of a weapon to commit a felony, and robbery. The court
found him to be a habitual criminal. Dixon was sentenced to
terms of imprisonment of 35 to 60 years for first degree sexual
assault, 35 to 60 years for use of a weapon to commit a felony,
and 10 to 20 years for robbery. All sentences were ordered to
be served consecutively.
II. ASSIGNMENTS OF ERROR
Dixon assigns, restated, that the district court erred in (1)
failing to grant his motion for mistrial on the basis that pro-
spective jurors may have seen him in visible restraints during
voir dire; (2) failing to grant his motion for mistrial on the
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340 286 NEBRASKA REPORTS
basis that the State elicited testimony from a police officer
that violated the court’s order prohibiting the presentation of
evidence under Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404(Cum. Supp. 2012); (3) failing to sustain his motion to sup-
press evidence of identification and in subsequently admitting
said evidence; (4) failing to sustain his motion for a directed
verdict at the conclusion of all evidence; (5) determining he
was a habitual criminal when the State did not provide suffi-
cient proof of the proffered prior convictions; (6) applying the
penalty provision of Neb. Rev. Stat. § 29-2221(1)(a) (Reissue
2008) based upon a purported prior conviction for aiding
and abetting first degree assault; and (7) imposing exces-
sive sentences.
III. STANDARD OF REVIEW
[1] Whether to grant a motion for mistrial is within the trial
court’s discretion, and this court will not disturb its ruling
unless the court abused its discretion.1
[2] A trial court’s conclusion whether an identification
is consistent with due process is reviewed de novo, but the
court’s findings of historical fact are reviewed for clear
error.2
[3,4] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed.3 An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court.4
1
State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013); State v. Scott, 284
Neb. 703, 824 N.W.2d 668 (2012).
2
State v. Nolan, 283 Neb. 50, 807 N.W.2d 520 (2012), cert. denied ___ U.S.
___, 133 S. Ct. 158, 184 L. Ed. 2d 78.
3
State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
4
State v. Watt, 285 Neb. 647, ___ N.W.2d ___ (2013); State v. Wills, 285
Neb. 260, 826 N.W.2d 581 (2013).
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STATE v. DIXON 341
Cite as 286 Neb. 334IV. ANALYSIS
1. Motions for Mistrial
[5] We first consider Dixon’s argument that the district
court erred in overruling his two motions for mistrial. The first
motion was based on a contention that prospective jurors may
have seen him wearing leg restraints during voir dire examina-
tion, and the second motion was based on the contention that
the State elicited inadmissible testimony from a police officer.
A mistrial is properly granted in a criminal case where an
event occurs during the course of a trial which is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial.5 As noted, we review an order overruling a motion for
mistrial for abuse of discretion.6
(a) First Motion for Mistrial
During jury selection, Dixon’s counsel moved for a mistrial
on the ground that prospective jurors may have seen Dixon in
leg restraints while he was seated at the counsel table. Counsel
chose not to inquire of prospective jurors whether they had in
fact seen the restraints. The prosecutor argued that prospective
jurors could not have seen the restraints because a cart blocked
their view, but Dixon disputed this. After personally assessing
the prospective jurors’ view of Dixon, the court overruled the
motion but requested that transport officers remove the leg
shackles and replace them with a leg brace.
[6] The general rule is that a defendant who is on trial
should be free from shackles unless they are necessary to pre-
vent violence or escape.7
This is because it is central to the right to a fair trial,
guaranteed by the 6th and 14th Amendments, that one
accused of a crime is entitled to have his or her guilt or
5
State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
6
State v. Watson, supra note 1; State v. Scott, supra note 1.
7
State v. Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other
grounds, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009); State v.
Heathman, 224 Neb. 19, 395 N.W.2d 538 (1986).
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342 286 NEBRASKA REPORTS
innocence determined solely on the basis of the evidence
introduced at trial, and not on grounds of official sus-
picion, indictment, continued custody, or other circum-
stances not adduced as proof at trial.8
But application of the general rule must be tempered with
some measure of common sense. Jurors are aware that the
defendant “did not arrive there by choice or happenstance.”9
It is not possible to “eliminate from trial procedures every
reminder that the State has chosen to marshal its resources
against a defendant to punish him for allegedly crimi-
nal conduct.”10
In State v. Mata,11 it was undisputed that jurors observed
the defendant in leg restraints as he walked 15 to 20 feet
through the courtroom. But we held that the district court
did not err in overruling his motion for mistrial, reasoning in
part that “[t]he restraints could serve only to call the jury’s
attention to what it already knew—that [the defendant] was
charged with a serious crime.”12 Viewing the proceedings in
their entirety, we concluded that the defendant was not addi-
tionally stigmatized or deprived of a fair trial by the use of
leg restraints.
Here, it is not clear from the record that any prospective
juror ever actually saw Dixon in leg restraints. Moreover,
when the issue was called to the trial judge’s attention, she
took immediate steps to ensure that jurors would not see
the restraints. When Dixon testified, he was fitted with a
leg brace so he could walk to the witness stand. When he
completed his testimony, he remained seated in the witness
stand until the jury left the courtroom. Considering the sparse
factual record of the leg restraint incident in the context of
the entire proceeding, we conclude that the district court did
8
State v. Mata, supra note 7, 266 Neb. at 691, 668 N.W.2d at 471.
9
Holbrook v. Flynn, 475 U.S. 560, 567, 106 S. Ct. 1340, 89 L. Ed. 2d 525(1986).
10
Id.11
State v. Mata, supra note 7.
12
Id. at 692, 668 N.W.2d at 472.
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STATE v. DIXON 343
Cite as 286 Neb. 334not abuse its discretion in overruling Dixon’s first motion
for mistrial.
(b) Second Motion for Mistrial
Dixon argues that the trial court abused its discretion in
overruling his motion for a mistrial based on the testimony of
Sgt. Gregory H. Sorensen of the Lincoln Police Department.
Sorensen compiled the photographic array from which J.K.
identified Dixon as the perpetrator of the assaults. Prior to
trial, the district court entered an order determining that evi-
dence of another crime for which Dixon had been convicted
in State v. Dixon (Dixon I)13 was inadmissible in this case
under § 27-404(1). On direct examination, Sorensen stated
that he showed a series of photographs to J.K. on May 2,
2009. He stated that the individuals portrayed in the pho-
tographs were selected through “matching physical descrip-
tions, possibly Crimestoppers, probably known sex offend-
ers.” Sorensen said police had no “clear cut suspect” at that
time. He selected the photographs after he was “given names
by other detectives in the criminal unit that were also work-
ing on the case. And they were names that they had come up
with either — like I said, from people that were on parole
for sex crimes, violent histories, information, people that
matched physical description.”
At that point, Dixon’s counsel asked for a sidebar, in
which he stated that Sorensen’s testimony violated the court’s
pretrial rulings with respect to evidence of other crimes and
that the testimony implied that Dixon was a convicted sex
offender and on parole. Counsel moved for a mistrial or an
attempt to clarify that Dixon was not a known sex offender.
The court overruled the motion, reasoning that Sorensen had
mentioned a number of different criteria used in selecting
the photographs.
Dixon contends that the State was on notice Dixon’s prior
conviction was not admissible and that Sorensen’s testimony
was so fundamentally unfair that no admonition could have
13
State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
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344 286 NEBRASKA REPORTS
removed the unfairness. In support of this argument, he relies
on State v. Jones,14 in which a serologist testified that she
had compared hair examples from the defendant which she
received in “‘a different case.’” The trial court overruled the
defense objection to the testimony, but it admonished the
jury to disregard the witness’ comments.15 This court noted
that a mistrial may be warranted when an admonition to
the jury cannot erase the unfair prejudice,16 but determined
that the admonishment was sufficient to eradicate any unfair
prejudice to the defendant.17 In the case at bar, there was no
admonishment because Dixon did not ask the court to do so.
He argues on appeal that to request an admonishment would
have brought the issue to the jury’s attention and exacerbated
the problem.
[7] A defendant faces a higher threshold than merely show-
ing a possibility of prejudice when attempting to prove error
predicated on the failure to grant a mistrial.18 Instead, the
defendant must prove the alleged error actually prejudiced
him or her, rather than creating only the possibility of preju-
dice.19 Here, that threshold was not met. Sorensen listed
several general criteria he used in compiling the photographs
which he showed to J.K., and he made no reference to any
other crimes committed by Dixon. We conclude that Dixon
has not demonstrated that he was actually prejudiced or
deprived of a fair trial by Sorensen’s testimony, and the dis-
trict court did not abuse its discretion in overruling his motion
for a mistrial.
2. Identification by Victim
Dixon argues that the district court erred in overruling his
pretrial motion to suppress J.K.’s identification of him as her
14
State v. Jones, 232 Neb. 576, 578, 441 N.W.2d 605, 607 (1989).
15
Id.16
State v. Jones, supra note 14.
17
Id.18
State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); State v. Daly, 278
Neb. 903, 775 N.W.2d 47 (2009).
19
Id.Nebraska Advance Sheets
STATE v. DIXON 345
Cite as 286 Neb. 334assailant and in subsequently admitting her identification tes-
timony at trial over his objection. He contends that the photo-
graphic array procedure through which J.K. first identified him
was unduly suggestive, that J.K. did not observe her assailant
unmasked for a sufficient time to make a reliable identification,
and that there were inconsistencies in her testimony regard-
ing the identification. The facts relevant to these issues were
established primarily by the testimony of J.K. and Sorensen at
the suppression hearing and at trial. We summarize that testi-
mony now.
(a) Suppression Hearing
At a suppression hearing on November 17, 2009, J.K. testi-
fied that she was in the presence of her assailant for 10 hours
and that she was able to observe him without a mask on two
occasions. The first was when he entered the apartment, an
encounter which lasted approximately 10 minutes. At that time,
the lights were on in her kitchen and the television in the living
room was on. The second was when he lay next to her on the
bed. At that time, the lights were off.
J.K. testified that about a week after the assault, Sorensen
presented her with a photographic array of individuals who
matched the description she had given of her assailant. She
recognized one of the photographs as someone who looked
similar to her assailant. She believed Sorensen had shown her
20 photographs that day. She said she separated the photo-
graphs based on whether the individual looked like her assail-
ant. When she reached the photograph of Dixon, she placed
his photograph in a “maybe” pile and moved all of the other
photographs into a “no” pile. She said she later told Sorensen
she was 60- to 70-percent sure she had correctly identified her
assailant. At the hearing, she testified that she was 100-­ ercent
p
sure that Dixon was the assailant. She was more certain
“[b]ecause people look different in photos than they do in per-
son.” J.K. said she has astigmatism and wears glasses, but she
was not wearing them the night of the assault.
Sorensen testified that another officer put together a list
of individuals who matched the physical description given to
police in connection with a series of recent sexual assaults
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346 286 NEBRASKA REPORTS
and robberies. Sorensen located photographs of the individuals
whose names were collected by the other officer. He collected
nine photographs of individuals who matched the physical
description, using computer mug shots and driver’s license
photographs. Sorensen said J.K. looked through the photo-
graphs and put each on a pile until she got to the photograph
of Dixon. She said the man in that photograph looked most
similar to the person who assaulted her.
The trial court found that the procedures used by the police
were “in no way unduly suggestive or conducive to irreparable
mistaken identity.” It also held that J.K.’s in-court identifica-
tion should not be suppressed, because she testified that she
based her identification on her “observations and memory
relating to her attack” and “nothing else.”
(b) Trial
At trial, J.K. stated that she looked at photographs at the
police station at the request of Sorensen about a week after
the assault. After separating them into a “maybe” pile and
a “no” pile, J.K. selected one as looking most like the per-
son who assaulted her. J.K. said that the longer she looked
at the photograph, the more nervous she got, and that her
heart started pounding. Over Dixon’s objection, she identified
Dixon as the individual who assaulted her. Her identification
was based on the time she spent with the assailant in her
apartment. J.K. said she was 100-percent sure that Dixon was
her assailant. On cross-examination, J.K. stated that she had
been only 60- to 70-percent sure when she talked to Sorensen
on the phone about a week after the initial identification,
but she did not recognize any of the other men in the photo-
graphic lineup.
J.K.’s sister testified that J.K. called her before and after
J.K. went to the police station to look at a photographic
array. The sister advised J.K. to take her time when looking
at the photographs, but she did not tell J.K. she must iden-
tify someone.
Sorensen testified at trial that he showed J.K. a series of
photographs on May 2, 2009. Sorensen said J.K. went through
each photograph until she reached the eighth one, which she set
Nebraska Advance Sheets
STATE v. DIXON 347
Cite as 286 Neb. 334aside. It was a photograph of Dixon. Sorensen said he did not
give J.K. any instructions on how to separate the photographs.
J.K. said that the photograph of Dixon looked most similar to
the person who had assaulted her, but that she did not think
the assailant had braids in his hair and that he appeared to be
“more scruffy” than the person in the photograph.
Sorensen talked to J.K.’s sister on May 7, 2009, and then
contacted J.K. again to find out what she had told her sister
about the photographs. J.K. said she had told her sister the last
photograph she looked at was the person who assaulted her.
That photograph was of Dixon.
(c) Resolution
In State v. Nolan,20 we summarized the recent holding of the
U.S. Supreme Court in Perry v. New Hampshire21 regarding
eyewitness identification as follows:
[T]he Court held that “the Due Process Clause does not
require a preliminary judicial inquiry into the reliability
of an eyewitness identification when the identification
was not procured under unnecessarily suggestive cir-
cumstances arranged by law enforcement.” Suppression
of identification evidence on the basis of undue sug-
gestion is appropriate only where the witness’ ability
to make an accurate identification is outweighed by the
corrupting effect of improper police conduct. When no
improper law enforcement activity is involved, it suffices
to test the reliability of identification testimony at trial,
through the rights and opportunities generally designed
for that purpose, such as the rights to counsel, compul-
sory process, and confrontation and cross-examination
of witnesses.22
Applying these principles in Nolan, we concluded that the
evidence regarding the challenged identification “falls far short
20
State v. Nolan, supra note 2.
21
Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716, 181 L. Ed. 2d 694(2012).
22
State v. Nolan, supra note 2, 283 Neb. at 63, 807 N.W.2d at 535, quoting
Perry v. New Hampshire, supra note 21.
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348 286 NEBRASKA REPORTS
of the affirmative police misconduct that, under Perry, must
be shown in order for pretrial suppression of the evidence to
be appropriate.”23
We reach the same conclusion here. Dixon argues that the
State did not demonstrate a need for the type of photographic
array used here, but Sorensen testified that at the time he
assembled the array, no suspects had yet been identified. It is
true that there are some minor discrepancies in the testimony
regarding the manner in which the photographic array was
presented. But these minor discrepancies do not make the pro-
cedure unduly suggestive. Based upon our de novo review, we
conclude that the identification procedure was not tainted by
affirmative police misconduct so as to require a preliminary
judicial inquiry into the reliability of J.K.’s identification of
Dixon as her assailant. The district court did not err in overrul-
ing Dixon’s motion to suppress this evidence.
[8] Nor did the court err in permitting J.K. to identify
Dixon at trial. As in Nolan, it was the jury’s duty in this case
to assess J.K.’s credibility, and Dixon was free to probe that
issue through cross-examination, as he did. Likewise, Sorensen
was subject to cross-examination with respect to the procedure
used to develop the photographic array. It was for the jury to
determine whether J.K. observed her assailant unmasked for a
sufficient period of time to make a reliable identification and
whether she had made inconsistent statements regarding her
degree of certainty. An appellate court does not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence presented; such matters are for the finder
of fact.24
3. Motion for Directed Verdict
At the close of evidence, Dixon made a motion for directed
verdict, which the court overruled. In a criminal case, a court
can direct a verdict only when there is a complete failure of
evidence to establish an essential element of the crime charged
or the evidence is so doubtful in character, lacking probative
23
Id. at 64, 807 N.W.2d at 535-36.
24
State v. McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
Nebraska Advance Sheets
STATE v. DIXON 349
Cite as 286 Neb. 334value, that a finding of guilt based on such evidence cannot
be sustained.25 The relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.26
Dixon argues that without J.K.’s identification of him as the
assailant, the jury would have acquitted him. He claims her
identification was not credible. As noted above, however, there
was no error in the trial court’s admission of the identification.
The jury apparently believed J.K.’s identification of Dixon, and
we are bound by its determination.
Dixon also argues that he was at work the night of the
assault and that his phone records contradicted J.K.’s report
that the man who attacked her was texting after the first sexual
assault. The State introduced evidence from Dixon’s employ-
ers that could support an inference that Dixon manipulated
his work records to show that he was present when in fact he
was not. The phone records that were introduced supported an
inference that Dixon was in the vicinity of J.K.’s apartment at
the time of the assaults. In addition, evidence was introduced
that Dixon had access to latex gloves at both of his places
of employment.
Viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.27 The evi-
dence was sufficient to support the convictions.
4. Habitual Criminal Determination
[9,10] Dixon assigns that the district court erred in deter-
mining that he was a habitual criminal and sentencing him
accordingly, because the State failed to prove prior convictions
upon which habitual criminal status is premised.28 In a pro-
ceeding to enhance a punishment because of prior convictions,
the State has the burden of proving such prior convictions
25
State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013).
26
Id.27
See id.28
See § 29-2221 and Neb. Rev. Stat. § 29-2222 (Reissue 2008).
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350 286 NEBRASKA REPORTS
by a preponderance of the evidence.29 In a habitual criminal
proceeding, the State’s evidence must establish with requisite
trustworthiness, based upon a preponderance of the evidence,
that (1) the defendant has been twice convicted of a crime, for
which he or she was sentenced and committed to prison for
not less than 1 year; (2) the trial court rendered a judgment
of conviction for each crime; and (3) at the time of the prior
conviction and sentencing, the defendant was represented by
counsel or had knowingly and voluntarily waived representa-
tion for those proceedings.30
The State offered the same evidence at the habitual crimi-
nal hearing in this case as it offered in Dixon I: four exhibits
purporting to show prior felony convictions. Dixon’s counsel
objected to the exhibits, as he did in Dixon I, on the ground
that the State did not establish that Dixon was the same
person referred to in the exhibits reflecting the prior convic-
tions. Counsel also reasserted his objection that because one
of the convictions was for aiding and abetting first degree
assault, it could not be used for habitual criminal enhance-
ment. As it did in Dixon I, the district court overruled the
objections, received the evidence, and sentenced Dixon as a
habitual criminal.
We concluded in Dixon I:
The names in all four of the prior convictions are
“Armon Dixon” or “Armon M. Dixon” and thus match
Dixon’s name. Because Dixon has not denied that he is
the person referred to in these earlier convictions and
has not presented any evidence contradicting the State’s
position, . . . this is sufficient. Moreover, the birth dates
reflected on three of the prior convictions are consistent
with Dixon’s age. The State has proved the prior convic-
tions by a preponderance of the evidence.31
We reach the same conclusion here.
29
Dixon I, supra note 13; State v. Alford, 278 Neb. 818, 774 N.W.2d 394(2009).
30
Dixon I, supra note 13; State v. Epp, 278 Neb. 683, 773 N.W.2d 356(2009).
31
Dixon I, supra note 13, 282 Neb. at 292, 802 N.W.2d at 884.
Nebraska Advance Sheets
STATE v. DIXON 351
Cite as 286 Neb. 334Dixon urges that we reconsider our holding in Dixon I
because it impermissibly shifts the burden of proof to the
defendant. We disagree that our prior holding has that effect.
The existence of a prior conviction and the identity of the
accused as the person convicted may be shown by any compe-
tent evidence, including the oral testimony of the accused and
duly authenticated records maintained by the courts or penal
and custodial authorities.32 Here, the State’s evidence estab-
lished a prima facie showing of prior convictions necessary
for habitual criminal enhancement, and in the absence of any
evidence to the contrary, the district court did not err in deter-
mining that the State had met its burden.
Dixon also repeats his argument from the prior appeal that
the trial court erred in using a prior conviction for aiding and
abetting for enhancement. We reject this argument for the same
reasons we rejected it in Dixon I.33
5. Excessive Sentences
Dixon asserts that the trial court abused its discretion
in imposing more than the mandatory minimum sentences
required by the habitual criminal statute. He claims that the
sentences are excessive when considering he has a 15-year-old
daughter, he was working two jobs, he had graduated from
high school, and he had a fatherly relationship with his girl-
friend’s children.
[11] When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the amount of violence involved in the commission of
the crime.34
[12] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
32
State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004); State v. Luna, 211
Neb. 630, 319 N.W.2d 737 (1982).
33
Dixon I, supra note 13.
34
State v. Wills, supra note 4.
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352 286 NEBRASKA REPORTS
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as any
applicable legal principles in determining the sentence to be
imposed.35 The sentences imposed in this case were within the
statutory limits, and there was no abuse of discretion by the
trial court.
[13] Dixon also argues that the robbery sentence should
have been ordered to be served concurrently to the sexual
assault sentence, for the reasons that both relied on the same
fact pattern and the robbery was ancillary to the sexual assault
because the items stolen were taken to conceal the sexual
assault offense. It is within the discretion of the trial court
to impose consecutive rather than concurrent sentences for
separate crimes.36 The crimes arose from the same incident, but
they were completely different crimes with different elements.
There was no abuse of discretion in the trial court’s order of
consecutive sentences.
V. CONCLUSION
Finding no merit in any of Dixon’s assignments of error, we
affirm the judgment of the district court.
Affirmed.
Cassel, J., not participating.
35
State v. Erickson, supra note 3.
36
State v. Start, 239 Neb. 571, 477 N.W.2d 20 (1991).
Ladd D. K rings, appellee, v. Garfield County Board of
Equalization, appellee, and Douglas A. Ewald, Tax
Commissioner, and Ruth A. Sorensen, P roperty
Tax Administrator, appellants.
___ N.W.2d ___
Filed July 26, 2013. No. S-12-623.
1. Taxation: Judgments: Appeal and Error. Appellate courts review decisions
rendered by the Tax Equalization and Review Commission for errors appearing
on the record.